Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Forcing entry to perform a rescue

… question relates to powers of entry for rescue units under the State Emergency and Rescue Management Act 1989 (NSW) (the ‘SERM Act’).

It is routinely assumed that forced entry by a rescue agency (to gain access for paramedics to a patient, for example) is covered by the SERM Act. On closer reading, the application of the Act seems problematic. Outside of a state of emergency the only powers of entry are from Sect 61, but this requires the direction of a senior police officer (and they are often not yet on scene at time of entry or at all) and it must be in relation to an emergency, which is defined, in part, as an event “… requiring a significant and co-ordinated response”.

The rescue coordinator that assigns rescue units to the call (based on which agency’s rescue area it is) is a senior police officer, so it could be argued the dispatch constitutes the direction, but the rest of Sect 61 (AA to D) seems to infer that police are present at the time of entry, even where they utilise assistants under Sect 61AA. Furthermore, it would seem contrary to the intent of the Act for one vehicle from each of the services (which is the common response to most small rescue incidents) to constitute a “significant” response for the purposes of the Act.

One of the reasons I am curious is because damage caused by gaining entry at these minor incidents is only covered for insurance by Sect 62A if done in accordance with Sect 61. So, although (based on other responses you’ve written) there is plenty of common law basis for forcing the entry to rescue persons (and I would never seek to delay it), it seems critical that we should be establishing whether it is being done under the SERM Act at all if it is not defined as an emergency by the SERM Act and a senior police officer is not on scene to direct it and accompany the rescue crew.

Section 61 of the SERM Act says that police may take various life saving measures such as closing any street, public place or ‘danger area’; removing vehicles that are in the danger area; closing any public or private place (such as an office block); pulling down, destroying or securing a wall or damaged building, ‘shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in the danger area or any part of the danger area’; shutting off or disconnecting the gas or electricity, taking possession of anything in the danger area that is posing a danger to life or property or is interfering with the emergency response, and taking steps to ensure that any person does not remove material from the danger area. Section 61A says:

A police officer may enter any premises for the purposes of complying with a direction under section 61 (1).

That is not a power to enter the premises to rescue someone. It is a power to make sure that a direction has been complied with and the directions are quite specific. As noted the police may use assistants (s 61AA) so, for example, assume the police need to enter land to secure a dangerous wall they can do so with the help of a tradesperson to perform the work. Equally they can accompany the gas or electricity technician to ensure the gas or electricity are disconnected. There is nothing in s 61 (or s 60L) that would suggest there is some general power under the SERM Act to enter a house to effect a rescue.

The relevant power that police have comes from the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 9 which says:

A police officer may enter premises if the police officer believes on reasonable grounds that:…

(b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person.

Further it is lawful for the police ‘and anyone helping the police officer, to use such force as is reasonably necessary’ (s 230). This is in effect a restatement of the common law:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle. (Kuru v State of New South Wales (2008) 236 CLR 1, [40]).

As for s 62A of the SERM Act it says, in effect, that damage in response to an emergency is deemed to be damage by teh emergency for the purposes of insurance, so if a property is insured agaisnt loss by fire, any damage done by the fire brigade is deemed to be damage by fire; if one has insurance for loss by flood any damage done by the SES as part of the flood response is damage by flood but that is only relevant during a declared state of emergency (s 37) or a police declared danger area (s 61) so as my correspondent has noted it’s not relevant in this context as s 61 does not justify forcing entry for a ‘rescue’. Even if it did a rescue may well be caused by an emergency that does not have insurance, eg if a person has collapsed behind a locked door, breaking the door down is not responding to an emergency that will be subject to insurance so s 62A will not be relevant in any case.

In summary we can say ‘that forced entry by a rescue agency (to gain access for paramedics to a patient, for example) is’ NOT covered by the SERM Act. Where the police are on scene, they can exercise their authority under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 9. I do not think one could infer that just because police have responded an accredited rescue unit to a call for assistance that is somehow authorisation under s 9. It could be if the agency on scene found that they could not get access to the premises and called back to the police to ask for permission because only then could a police officer form the belief required by s 9(b) and only then could he or she have ‘reasonable grounds’ for that belief. One would imagine that in most cases both police and other emergency services have responded so one would expect that there was a police officer on scene who could form the necessary belief.

Where the police are not on scene and it is the ambulance service or SES that are gaining entry their actions are justified by the common law.